In this video, attorney Jacob J. Sapochnick discusses the adjustment of status interview for permanent residence. What happens when a denial is issued? To hear the answer to this question just keep on watching.
As part of the application process for permanent residence based on marriage, you and your spouse are required to attend an in person interview before your green card may be issued. In this video we focus on the marriage visa interview. So what happens when things go wrong?
Typically couples prepare for the green card interview by bringing all of the necessary documents to verify to the immigration officer that they have a bona fide marriage (such documents may include photographs of the couple together and with friends and family, evidence of joint accounts, evidence of commingling of finances, evidence of cohabitation, and joint responsibility of assets and liabilities). In some cases, however the immigration officer may not be convinced by a couple’s particular situation. The immigration officer sometimes finds issue with something the client said, or there may be some inconsistencies that capture the attention of the immigration officer, etc. In these cases, at the conclusion of the interview the immigration officer will notify the couple that they will not able to make an immediate decision. They will send the couple home and tell them to wait for a decision in the mail. If the couple does not receive an approval notice in the mail within 30 days, what will likely happen is that USCIS will send a notice of intent to deny (NOID). In most cases this notice is issued within 30 days of the green card interview.
A notice of intent to deny or ‘NOID’ is issued when the immigration officer has not been convinced by the couple that their marriage is a bona fide one. The NOID typically gives the applicant a 30-day time period to respond to the claims outlined in the notice (please note that the time period by which the applicant must respond will be clearly outlined in the notice itself). That notice contains the inconsistencies that the immigration officer found at the time of the interview. The NOID gives the applicant the opportunity to provide more evidence to convince the immigration officer that they do have a bona fide marriage, and explain any inconsistencies that were raised in the notice such as any misunderstanding that may have taken place at the time of the interview.
So what happens after those 30 days? Once a response has been mailed to USCIS before the deadline outlined in the notice, the applicant must wait for USCIS to make a decision regarding the case. What happens where there is a denial even after the applicant responds to the notice of intent to deny? When the case is denied, in most jurisdictions, the applicant is able to file a motion to reopen (I-290B) including further evidence to further explain the inconsistencies and reconcile the discrepancies found in the NOID and denial notice. If after the motion to reopen is filed, the case is still denied, if no action is taken on the part of the applicants, the case will move to immigration court, and at some point the applicant will be issued a notice to appear (NTA) before immigration court for removal proceedings. The applicant will have the opportunity to argue their case before an immigration judge. At that point the applicant may bring more evidence, witnesses, provide affidavits, etc in support of their good faith marriage and try to convince the judge that they have a bona fide marriage, and should not be deported.
In many cases where we feel that USCIS was not justified in their decision to deny (NOID) sometimes we recommend that the couple re-file the application for permanent residence where the couple has the same evidence, they still live together, they intend to stay in the relationship, in the same household, etc. Sometimes in this case it makes sense to refile before the applicant receives the NTA notice to appear before immigration court, because once you end up in immigration court it is impossible to re-file the I-485 application for permanent residence. Of course the drawback to this option is that the applicant must pay the filing fees again. This of course may not be the resolution to your particular problem. Every case is different but when things go wrong there are ways to deal with it. There are ways to explain any inconsistencies to USCIS. It is not the end of the world. Always remember that a foreign national will not be deported without receiving their due process rights. Always speak to your attorney or get a second opinion regarding your options moving forward. As long as you are still in a committed relationship and are in a bona fide marriage there are ways to solve your situation.
For more information about adjustment of status please visit our website.
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